05.23.13

Senate Votes To Confirm D.C. Circuit Court Nominee

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) hailed the unanimous confirmation Thursday of Sri Srinivasan to the D.C. Circuit Court of Appeals.

Leahy also criticized Republican efforts to delay a floor vote of the highly qualified nominee, who waited months for a confirmation hearing and who was first nominated nearly one year ago.

“For the second time this year, the Majority Leader was forced to file cloture on one of President Obama’s well-qualified nominees to the D.C. Circuit,” Leahy said. “Sri Srinivasan is not a nominee who should require cloture to be filed, and neither was Caitlin Halligan.”

Republicans filibustered Halligan’s nomination earlier this year to fill a vacancy left open since 2006, when Chief Justice John Roberts was confirmed to the Supreme Court. Her nomination lagged for two and a half years, and the united blockade by Senate Republicans to even consider her nomination left the important D.C. Circuit one-third vacant, as it remains today. 

Leahy further criticized the Republican legislation that attempts to strip the D.C. Circuit of three judgeships based on alleged caseload concerns. 

He pointed out that Republicans “had no concerns with supporting President Bush’s four Senate-confirmed nominees to the D.C. Circuit.  Those nominees filled the very vacancies for the ninth, tenth, and even the eleventh judgeship on the court that Senate Republicans are demanding be eliminated now that President Obama has been reelected by the American people.”

“The arguments now being made by Senate Republicans to eliminate three seats on the D.C. Circuit are not based in the reality of that court’s caseload,” he said.  “Even if we do make these misleading comparisons to other Circuits, the arguments also do not withstand scrutiny, since other Circuits have caseloads that are lower than the D.C. Circuit’s.  The D.C. Circuit’s need for judges will not be met by Sri Srinivasan alone.  We must work hard to fill the three additional vacancies currently on that court so that the D.C. Circuit can have its full complement of judges to decide some of the most important cases to the American people.” 

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Confirmation of the Nomination of Sri Srinivasan
May 23, 2013

For the second time this year, the Majority Leader was forced to file cloture on one of President Obama’s well-qualified nominees to the D.C. Circuit.  Sri Srinivasan is not a nominee who should require cloture to be filed, and neither was Caitlin Halligan.  Caitlin Halligan is a woman who is extraordinarily well-qualified and amongst the most qualified judicial nominees I have seen from any administration.  It was shameful that Senate Republicans blocked an up-or-down vote on her nomination with multiple filibusters and procedural objections that required her to be nominated five times over the last three years.

Had she received an up-or-down vote, I am certain she would have been confirmed and been an outstanding judge on the United States Court of Appeals for the District of Columbia.  Instead, all Senate Republicans but one supported the filibuster and refused to vote up or down on this woman, who is highly-qualified and would have filled a needed judgeship on the D.C. Circuit.  Senate Republicans attacked her for legal advocacy on behalf of her client, the State of New York.  It is wrong to attribute the legal positions a lawyer takes when advocating for a client with what that person would do as an impartial judge.  That is not the American tradition.  That is not what Republicans insisted was the standard for nominees of Republican Presidents but that is what they did to derail the nomination of Caitlin Halligan. 

Also disconcerting were the comments by Republicans after their filibuster in which they gloated about payback.  That, too, is wrong.  It does our Nation and our Federal Judiciary no good when they place their desire to engage in tit-for-tat over the needs of the American people.  I rejected that approach while moving to confirm 100 of President Bush’s judicial nominees in just 17 months in 2001 and 2002.

Like Caitlin Halligan, Sri Srinivasan has had an exemplary legal career and has the support of legal professionals from across the political spectrum.  Born in Chandigarh, India, he grew up in Lawrence, Kansas, and earned his B.A., with honors and distinction from Stanford University.  He also earned his M.B.A. from the Stanford Graduate School of Business along with his J.D., with distinction, from Stanford Law School, where he was inducted to the Order of the Coif.  At Stanford Law School, Sri Srinivasan served as the Note Editor of the Stanford Law Review.  After completing law school, he clerked for Judge J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit and for Justice Sandra Day O’Connor on the U.S. Supreme Court.

Sri Srinivasan has experience in private practice, where he served as a partner and chaired the Appellate Practice at O’Melveny & Myers LLP.  He has also served in the Office of the Solicitor General during both the Bush and Obama administrations, where he is currently the Principal Deputy Solicitor General.  He has argued more than 25 cases before the U.S. Supreme Court and several cases before the U.S. Courts of Appeal.  The ABA Standing Committee on the Federal Judiciary unanimously rated him “well qualified” to serve on the D.C. Circuit, its highest rating.  The Judiciary Committee reported Sri Srinivasan one week ago by a unanimous 18-0 vote.  That means that every single Republican on the Committee who had a chance to review the nominee’s record, and to ask him questions, supported him.

He was first nominated almost one year ago – a longer wait than any other current judicial nomination.  His Committee hearing was delayed by four months from when I first planned on holding it, at the request of the Republicans.  Sri Srinivasan has waited long enough, and, given his unanimous support in Committee, there was no reason to delay his confirmation.  The Senate confirmed 18 of President Bush’s circuit nominees within a week of being reported by the Judiciary Committee, while not a single one of President Obama’s circuit nominees has received a floor vote within a week of being reported.  Senate Democrats even allowed a vote on a controversial Fourth Circuit nominee within just five days of being reported.  By that standard, there is no reason not to vote now on Sri Srinivasan.  When confirmed, he will be the first Asian American in history to serve on the D.C. Circuit, and the first South Asian American to serve as a Federal circuit judge.

Regrettably, even after their unwarranted filibuster of Caitlin Halligan, and even after their efforts to delay Sri Srinivasan’s confirmation, Senate Republicans are expanding their efforts through a “wholesale filibuster” of nominations to the D.C. Circuit by introducing a legislative proposal to strip three judgeships from the D.C. Circuit.  I am tempted to suggest that they amend their bill to make it effective whenever the next Republican President is elected.  I say that to point out that they had no concerns with supporting President Bush’s four Senate-confirmed nominees to the D.C. Circuit.  Those nominees filled the very vacancies for the ninth, tenth, and even the eleventh judgeship on the court that Senate Republicans are demanding be eliminated now that President Obama has been reelected by the American people.  The target of this legislation seems apparent when its sponsors emphasize that it is designed to take effect immediately and acknowledge that “[h]istorically, legislation introduced in the Senate altering the number of judgeships has most often postponed enactment until the beginning of the next President’s term” but that their legislation “does not do this.”  It is just another one of their concerted efforts to block this President from appointing judges to the D.C. Circuit.

In support of this effort, Senate Republicans are citing a subcommittee hearing they held back in 1995 on the D.C. Circuit’s caseload in an attempt to eliminate the 12th seat during President Clinton’s tenure.  They are fond of citing the testimony of Judge Laurence Silberman, a Reagan appointee, that he felt the 12th seat was not necessary.  What Senate Republicans do not mention is that Judge Silberman believed that 11 judgeships was the proper number on that Circuit, and that the notion that the D.C. Circuit should have only nine judges was “quite farfetched.”  I would echo those comments, and note that it is beyond farfetched that the same Senate Republicans who cite Judge Silberman’s view on the 12th seat are ignoring the rest of his statement and seeking to reduce the court to eight seats. In fact, we have already acted to eliminate the 12th seat from the D.C. Circuit.  What Senate Republicans are now proposing during this President’s tenure is the elimination of the 11th, 10th, and 9th seats, as well.

In its April 5, 2013 letter, the Judicial Conference of the United States, chaired by Chief Justice John Roberts, sent us recommendations “based on our current caseload needs.”  They did not recommend stripping judgeships from the D.C. Circuit but state that they should continue at 11.  Four are currently vacant.  According to the Administrative Office of U.S. Courts, the caseload per active judge for the D.C. Circuit has actually increased by 50 percent since 2005, when the Senate confirmed President Bush’s nominee to fill the 11th seat on the D.C. Circuit.  When the Senate confirmed Thomas Griffith – President Bush’s nominee to the 11th seat in 2005 – the confirmation resulted in there being approximately 119 pending cases per active D.C. Circuit judge.  There are currently 188 pending cases for each active judge on the D.C. Circuit, more than 50 percent higher.

This falls into a larger pattern that we have seen from Senate Republicans over the past 20 years.  While they had no problem adding a 12th seat to the D.C. Circuit in 1984, and voting for President Reagan and President George H.W. Bush’s nominees for that seat, they suddenly “realized” in 1995, when a Democrat served as President, that the court did not need that judge.  When Judge Merrick Garland was finally confirmed in 1997, many Senate Republicans voted against him, because they had decided that the 11th seat was also unnecessary.  Senate Republicans then refused to act on President Clinton’s final two nominees to the D.C. Circuit, one of whom now serves on the Supreme Court.

In 2002, during the George W. Bush administration, the D.C. Circuit’s caseload had dropped to its lowest level in the last 20 years.  During that Republican administration, Senate Republicans had no problem voting to confirm President Bush’s nominees to the 9th, 10th, and 11th seats.  These are the same seats they wish to eliminate now that Barack Obama is President, even though the court’s current caseload is consistent with the average over the past 10 years.  Even on its own terms, it is apparent that this argument has nothing to do with caseload, and everything to do with who is President.

Contrary to what Senate Republicans are arguing, the D.C. Circuit does not even have the lowest caseload in the country.  The Circuit with the lowest number of pending appeals per active judge is currently the Eighth Circuit, to which the Senate recently confirmed a nominee from Iowa.  I do not recall seeing any bills from Senate Republicans to eliminate that seat.

Moreover, the unique character of the D.C. Circuit’s caseload means that it is misleading to compare its caseload to that of the other Circuits.  The D.C. Circuit Court of Appeals is often considered “the second most important court in the land” because of its special jurisdiction and because of the important and complex cases that it decides.  The Court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11.  These cases make incredible demands on the time of the judges serving on this Court.  It is misleading to cite statistics or contend that hardworking judges have a light or easy workload.  All cases are not the same and many of the hardest, most complex and most time-consuming cases in the Nation end up at the D.C. Circuit.

Former Chief Judge Harry Edwards has said: “[R]eview of large, multi-party, difficult administrative appeals is the staple of judicial work in the D.C. Circuit.  This alone distinguishes the work of the D.C. Circuit from the work of other Circuits; it also explains why it is impossible to compare the work of the D.C. Circuit with other Circuits by simply referring to raw data on case filings.”

Former Chief Judge Patricia Wald has written:

“The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions… The nature of the D.C. Circuit’s caseload is what sets it apart from other courts.”

Judge Laurence Silberman has said: “I very much agree…as to the unique nature of the D.C. Circuit’s caseload, and therefore do not believe a direct comparison to the other circuits is called for.”

And Chief Justice Roberts, who formerly served on the D.C. Circuit, has noted that “about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide,” and that less time-consuming “prisoner petitions—which make up a notable portion of the docket nation-wide on other courts of appeals—are a less significant part of its work.”  He also described the “D.C. Circuit’s unique character, as a court with special responsibility to review legal challenges to the conduct of the national government.”

The arguments now being made by Senate Republicans to eliminate three seats on the D.C. Circuit are not based in the reality of that court’s caseload.  Even if we do make these misleading comparisons to other Circuits, the arguments also do not withstand scrutiny, since other Circuits have caseloads that are lower than the D.C. Circuit’s.  The D.C. Circuit’s need for judges will not be met by Sri Srinivasan alone.  We must work hard to fill the three additional vacancies currently on that court so that the D.C. Circuit can have its full complement of judges to decide some of the most important cases to the American people.

Sri Srinivasan is a superbly-qualified, consensus nominee.  I am glad the Republican filibuster has come to an end and the Senate is being permitted to vote on this nomination. I will, again, vote in favor of confirmation.

 

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